Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 116 of 139
determine whether a customer list is a trade secret: “(1) what steps, if any, an employer has
taken to maintain the confidentiality of a customer list; (2) whether a departing employee
acknowledges that the customer list is confidential; and (3) whether the content of the list is
readily ascertainable.” Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 467 (5th Cir.
2003). In considering whether information was readily ascertainable, courts have considered
the expense of compiling it. See Zoecon Indus. v. Am. Stockman Tag Co., 713 F.2d 1174,
1179 (5th Cir. 1983) (“Even if the names and addresses were readily ascertainable through
trade journals as the defendants allege, the other information could be compiled only at
considerable expense.”). 44
Other Texas courts focus on the method used to acquire the
customer information. Even if the information is readily available in the industry, it will be
protected if the competitor obtained it working for the former employer. See Brummerhop,
840 S.W.2d at 633; Am. Precision Vibrator Co. v. Nat’l Air Vibrator Co., 764 S.W.2d 274,
277 (Tex. App.—Houston [1st Dist.] 1988, no writ) (“In Texas, courts condemn the
Magazines In-Flight, LLC, 990 F. Supp. 119, 129–30 (E.D.N.Y. 1997) (holding that the plaintiff’s customer
lists were not trade secrets because the customer identity could be easily found through publicly available
means, such as the internet, trade shows, trade directories, and telephone books, or were imbedded in the
defendant’s memory); Millet v. Loyd Crump, 96-CA-639, pp. 5–6 (La. App. 5 Cir. 12/30/96); 687 So. 2d 132,
136 (holding that the trial court erred in concluding that customer lists were trade secrets under the Uniform
Unfair Trade Secrets Act because the defendant had monthly access to the files to complete an ongoing audit,
the defendant could obtain client information when clients contacted her directly, and insurance companies
and policy holders also had the information alleged to be confidential).
44 See also Crouch v. Swing Machinery Co., 468 S.W.2d 604, 607 (Tex. Civ. App.—San Antonio 1971, no
writ) (“[T]here is evidence to the effect that the important information relates not to the identity of particular
businesses which might purchase plaintiff’s products, but the identity of officers or other employees of such
concerns who make the decisions concerning the purchase of such equipment. There is also evidence which
at least tends to show that ascertaining the identity of such key personnel requires the expenditure of
considerable time and money.”). Courts have also considered the difficulty of compiling the customer list to
determine whether it is confidential. See M.N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 632 (Tex.
App.—Houston [14th Dist.] 1992, writ denied).
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